Analysis on Article 13 of the Colombian Ley Lleras 2.0

[reposted from andresizquierdo.com] The Congress of Colombia recently passed an Internet copyright legislation, Ley 1520 of year 2012, also known as Ley Lleras 2.0, to implement the U.S.-Colombia Free Trade Agreement. With in the following weeks after Ley Lleras 2.0. was passed, a challenge was brought upon the law, and yesterday, because of a leak, the media announced, first, that the Colombian Constitutional Court had stuck down article 13 and 14, and later during the day, that the complete law went down. According to the information received, the law was declared unconstitutional on procedural and substantive grounds.

Although the Official Press Release of the Constitutional Court is not available yet and the ruling is expected to be published within the next days (weeks), this blogpost will do an approach of article 13 of Ley Lleras 2.0. which established the requirement for consent of the copyright holder for retransmission of TV signals online. Whether the Court struck down or limited the scope of article 13, in the meantime we are releasing  this paper with various legal arguments stating that article 13 goes beyond the Agreement’s (FTA) requirements, putting in place restrictions beyond what the Agreement require, beyond what related international treaties allow, and which are not matched by reciprocal U.S. law.

The main problems of article 13 of Ley Lleras 2.0. are as follows. First, the norm did not allow for any exceptions or limitations, and was not subject to three-step test which typically allows for countries to enact flexibilities to copyright law. Second, the article was not matched by reciprocal laws in the U.S., where the law governing the retransmission of broadcast signals is in flux, and where the relevant statutes do not expressly bar online systems from acting as “multichannel video programming distributors” (e.g., cable and direct broadcast satellite television). Finally, the Act did not contain the flexibilities that are required for copyright laws to comport with freedom of expression, which raises problems both under Colombian and international law.

A. Exceptions and limitations.

Article 13 of Ley Lleras 2.0. does not reflect the evaluation of legislators over the need and desirability for society to use a work in comparison with the economic interests of copyright holders. This weighting process often leads to results that vary from country to country to determine which limitations are established in each national legislation and the form taken by each limitation. Indeed, some countries have adopted very restrictive limitations for copyright, such as France, Luxembourg and India, while others, like the United Kingdom, Australia and Canada, have included extensive provisions in their laws, which allow some acts that involve the use of the work without the prior permission of the copyright holder ^[1]. Whether restrictive or extensive, it is well known that Colombian legislation has also followed a weighting process, how ever, article 13 of Ley Lleras 2.0., with no reason excludes any possible balance between the rights involved.

Colombian copyright legislation contain, contrary to article 13, a regime where, under certain circumstances, the use of a copyrighted work by a third party does not require the permission/consent of the author/copyright holder, and sometimes, does not even require any payment of remuneration or compensation (quotation). We may find in Colombia, among others norms, articles 3, 22 and 32 of the Agreement 351 of the Andean Community and Articles 31 to 35, 37 to 41, 44 and 45 of Law 23 of 1982 of Colombia, norms were exceptions and limitations and the three-step-test is stablished. Contrary to the Colombian practice, Article 13 of Law Lleras does not include this criterion, nor allow any exception for the use of the copyright contents excluding the right to use content for educational, cultural or journalistic purposes.

The named norm also ignores the three step test to establish any exceptions or limitations which could lead to a breach of the Berne Convention. Many international copyright agreements incorporate a version of the “three-step test,” under which signatory nations may adopt certain limitations or exceptions to copyright law. However, under international law certain limitations and exceptions to copyright law are mandatory. For example, Article 10 of the Berne Convention requires that countries allow for “Certain Free Uses of Works.”^[2] Colombia, being signatory of the Berne Convention should follow this norms, nevertheless, Article 13 of Ley Lleras 2.0. does not allow for these or any other uses, situation which could lead to a breach of the obligations established in Berne Agreement.

B. Asymmetry with US Laws

Article 13 of the Lleras Act 2.0. shows asymmetry with the current internal law of the United States on the retransmission of TV signals. Although Lleras Act 2.0. requires the copyright holder consent for the retransmission of the signal, the US law has a compulsory copyright license for the carriage of the TV signals for the Multichannel Video Programs Distributors (MVPDs), and the Communications Act of 1992 does not expressly exclude or prohibits the retransmission of signals by Online Video Distributors (OVDs).

In contrast to the provisions of Article 13, U.S. law does not expressly require the consent of a copyright owner to retransmit broadcast signals online. In the first place, all copyrights in the United States, for all uses, are subject to fair use. Retransmissions that constitute fair use are therefore allowed without the permission of copyright owners. Article 13 is clear enough to establish the prohibition, without exceptions, to retransmit without the consent of the copyright holder. While it is unclear exactly how this consent would be given, it is important to consider that the breach of this requirement would lead to civil or criminal consequences  (see article 16 of Ley Lleras 2.0).

Contrary to the US law, Ley Lleras in article 13 does not grant a compulsory copyright license regime. In the US law, the 1976 Copyright Act creates the compulsory license regime.  The 1992 Cable Act created the retransmission consent regime, which states that MVPDs need to get the permission of broadcasters (not the copyright holders in the programming) to retransmit their programming.  The 1976 Copyright Act conditions the compulsory license on an MVPD following applicable FCC rules, however.   Thus, an MVPD that fails to get the permission of a broadcaster to retransmit a signal, loses the compulsory license, and thereby becomes a copyright infringer.

It is important to consider that, concerning the Online systems, U.S. law is ambiguous as to whether they can qualify as “cable systems” for either communications law or copyright purposes. The Federal Communications Commission (FCC) in Washington is currently considering whether an online service can qualify as a multichannel video programming distributor for the purposes of obtaining equal access to some kinds of programming, and the Second Circuit Court of Appeals in New York recently held that the controlling statutes are “ambiguous” as to whether an online system can qualify as a cable system for the purpose of the cable copyright compulsory license^[3].

C. Conflicts with International Law

Colombia Lleras Act 2.0. shows asymmetry with international human rights treaties, and ignores the domestic and international legal practices which generally search for a balance between copyright holders and the free flow of information and dissemination of knowledge.

The right to freedom of expression must be reconciled with copyright. Often, specific exceptions to copyright must be established to ensure that intellectual property rights do not trump this important human right. However, Lleras Law 2.0. provides no exception and therefore denies the right of freedom of expression enshrined in international standards. In most Western jurisdictions, freedom of expression extends not only to speech and the press, but also to the many areas in which individuals or groups may feel the need to express themselves: in politics, research, assemblies, art and culture, among others. The right of expression works then as a mechanism to limit and create exceptions to the monopoly on information in copyrighted works. Freedom of expression is enshrined as a fundamental right in the Universal Declaration of Human Rights and subsequently incorporated, among other treaties, in Article 19 of the International Covenant on Civil and Political Rights -ICCPR- and Article 13 of the American Convention on Human Rights – ACHR-. However, the right to freedom of expression is diminished when Lleras Act 2.0. fails to  allow for any exceptions to a portion of the copyright regime.

Lleras Act 2.0. Colombia might be in breach of the Pacta Sunt Servanda principle of the Vienna Convention for violation of the right of freedom of expression included in two human rights treaties ratified by Colombia: the ACHR and the ICCPR. This principle, as well for the Vienna Treaty, has been ratified by Colombia and, according to the Constitutional Court, the authorities are obliged to ensure the observance of ratified treaties (Constitutional Court C-400/98, C-155/00, C-750/08). Article 13 the of the ACHR – American Convention on Human Rights was included as article 20  in the Colombian Constitution,  and article 19 of the International Convenant on Civil Rights was included as article 29 of the Colombian Constitution. However, Lleras Act 2.0., by providing for no exceptions or limitations on a copyright requirement, denies the right of freedom of expression, situation that could lead to a breach of the ACHR and the ICCPR accordingly to the Vienna Convention.

Lleras Act 2.0. Colombia might be also in asymmetry with the internal US Statue and with previuos rulings of US Courts.  As the U.S. Supreme Court has held, copyright laws would violate the First Amendment to the U.S. Constitution (which guarantees freedom of expression) unless they have “built-in First Amendment accommodations,” such as the idea/expression dichotomy and fair use. The Copyright Term Extension Act (CTEA) of 1998 of the US, itself supplements the traditional First Amendment  safeguards in two ways, contrary to what Lleras Act 2.0. does.   See Eldred v. Ashcroft 537 U.S. 186 (2003) 239 F.3d 372. The first allows libraries and similar institutions to reproduce and distribute copies of certain published works for scholarly purposes during the last 20 years of any copyright term, if the work is not already being exploited commercially and further copies are unavailable at a reasonable price, §108(h); the second exempts small businesses from having to pay performance royalties on music played from licensed radio, television, and similar facilities, §110(5)(B).  How ever Lleras Act 2.0. does not include any possible uses in a assymetry to the internal laws of the US.

Conclusions

The internet copyright legislation – Lleras Act 2.0.- passed by the Congress of Colombia to implement the last year approved FTA with the U.S., goes beyond the Agreement generating asymmetry with internal Colombia Law, U.S. domestic law and related international treaties. First, the norm does not allow any exceptions or limitations, nor the three step test to the copyright requirement; second, in the U.S. the law governing the retransmission of broadcast signals is in flux, and where the relevant statutes do not expressly bar online systems from acting as “multichannel video programming distributors”; and third, the Lleras Act 2.0. shows asymmetry with international human rights treaties in violation of the right of freedom of expression.

While it is undisputed that the basic framework of rules for copyright and related rights are generally applicable to the digital networked environment, the precise scope and limitations of these rights is a major outstanding problem facing legislators. Confronted with difficult legal and policy problems, and facing pressure from the U.S. government, and from foreign and domestic content and media industries to hastily enact new legislation, it is unfortunate but not surprising that some national legislatures have enacted laws that are not fully considered. Lleras Act 2.0 is an example of such a law. Its very structure shows its carelessness: It simply directly incorporates the language of the Agreement, even wording that is illogical in the context of a domestic law.

By failing to incorporate limitations or exceptions, the Ley Lleras 2.0. is not consistent with the norms that have been in place since the Berne Convention. And while facially an attempt to protect the rights of content creators online, the law could instead be a tool by which established video distributors lock in their market positions and outlaw potential competition by new services. By limiting the future development of online video distribution in Colombia, the Act fails to promote the interests of Colombian consumers. It is not necessary to implement the Agreement in a way that has these bad consequences.